Hargreaves Review: the unanswered questions

3 August 2011

The Creators’ Rights Alliance is deeply disappointed that the government, responding to the Hargreaves review of intellectual property law this morning [1], has failed to take this opportunity to deal with the fundamental issues that Professor Hargreaves considered outside his narrowly economistic brief.

Why is it necessary to remind the government once more of the necessity of new, original creation to the “creative economy”? The focus on making it easier for organisations, such as web-search engines, to make money by reshuffling existing work is equivalent to proposing that the “service economy” be built around households taking in each others’ washing.

Not only in the interests of the economy, but for the sake of culture and democracy, it must possible for creators to make a living as independent professionals dedicated to making high-quality new work.

Professor Hargreaves’ brief excluded probably the most important consequence of the new communications technology.

This is that almost every child now in school will be a published or broadcast author or performer before they can vote. Some – no-one can know which – will go on to be the professional creators on whose work the “information economy” is founded – but only if they can negotiate on a level playing field to obtain fair remuneration for their work. This too must be addressed.

Any proposal to make the proposed “Digital Copyright Exchange” effectively compulsory – for example by failing to correct the serious obstacles to access to justice for creators who do not register their work with it – would be to discriminate against those starting out on their careers (and, indeed, citizens who will not develop any wish to become professional) and will be resisted.

Every citizen needs an enforceable right to be identified – that is, given a credit or byline and to defend the integrity of our work. We all – especially, perhaps, politicians - needs these rights as a protection against the abuses of creative works and news reporting that are so sadly common when copying, manipulation and out-of-context use are a matter of a few taps on a screen.

It is more important than ever that citizens should have a right to know the source of the information they are receiving: this can only be achieved through creators taking responsibility for their work through strengthened rights of identification and integrity.

In detail – albeit rather a large detail – the Creators’ Rights Alliance points to the logical and legal absurdity of legislating to permit use of works whose creators cannot be identified, without at the same time giving all creators an unwaivable right to be identified. The right of identification is essential to prevent a burgeoning of such “orphan works”, especially when some online services automatically strip identifying information from works distributed through them.

The recommendation in the Hargreaves Report for a “Digital Copyright Exchange” equally requires that these deficiencies of UK law be remedied, not least for the reasons identified by CRA member the National Union of Journalists [2]. We welcome the government’s decision that entering works into such an Exchange, if it gets off the ground, will be cost-free; and that participation in any extended collective licensing scheme would be voluntary.

The CRA strongly welcomes the proposal for a Small Claims procedure to enable individual creators to pursue those who use work without permission. We are slightly encouraged by and the spirit of the proposal (contrary to Hargreaves) that, when use of work by uncontactable authors is licensed, the fee should reflect the commercial value of such uses.

Any such licensing of so-called “orphan works” must be done by bodies accountable to creators in that field of work; and the licences must be reviewed if the creator shows up.

The CRA will be responding in full to the consultageddon proposed by the government for the Autumn.

Mike HoldernessChair, Creators’ Rights Alliance

Member organisations of the Creators’ Rights Alliance represent over 100,000 creators, from novelists and illustrators to journalists and composers and musicians, in the UK. See www.creatorsrights.org.uk for details.